Patraeus Affair Reveals Lack of Privacy in Personal Email
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
David Petraeus was director of the Central Intelligence Agency until his abrupt resignation earlier this month. He is also one of the most decorated, highly respected military figures over the last generation in this country. He was, and remains, an honorable man, the CIA resignation notwithstanding.
Now, let’s set the stage with the remaining characters starring in this latest American inspired tragedy.
Paula Broadwell, a West Point graduate, became Petraeus’s biographer while the general was still head of the U.S. Central Command in Tampa, Florida.
Then there is Jill Kelley, a socialite in Tampa, Florida, who has hired a high-profile Washington attorney and a professional “crisis manager” to manage her public relations in the media frenzy. Married to a prominent physician, Kelley used her social status to cultivate warm and personal relationships with Petraeus, Gen. John R. Allen, the current commander of NATO forces in Afghanistan, and other military personnel at the MacDill Air Force Base in Tampa. She parlayed these relationships into having free, open access to the inner chambers of the MacDill base as well as securing the symbolic position as “honorary consul general of South Korea.” She reportedly exchanged hundreds, if not thousands, of emails with Gen. Allen—some of them being described in the media as “flirtatious.”
Frederick W. Humphries II is an FBI agent with a significant background in terrorism investigations, and according to the New York Times, is “relentless in his pursuit of what he sees as wrongdoing.” He also has, or had, some sort of personal relationship with Jill Kelley. Apparently, he didn’t apply his reputed professionalism and relentless pursuit of wrongdoing to his own conduct because it has been revealed that he sent a “shirtless” photo email to Kelley, a woman he knew to be married, and presumably (since he is a “veteran” terrorism expert) that such an email probably violated the FBI’s Code of Professional Conduct.
Two months after he became CIA director and following his retirement from military service, Gen. Patraeus entered into an extramarital affair with Broadwell. That would have been sometime around November 2011. Apparently sometime this year Broadwell began to suspect that Petraeus’s relationship with Kelley was more than “platonic” as the CIA director had described it to her and other friends. Whether there was fire in the smoke is unknown. What is known is that Broadwell started sending anonymous emails to Kelley and Gen. Allen in effect saying she should stay away from Petraeus. The emails were graphic and harassing enough that Kelley believed she was being “cyberstalked.”
Kelley took her concerns to Gen. Allen and to her “shirtless” FBI wonder boy (photo showed a muscular Humphries between two target dummies, according to media reports). Humphries reported the emails to the FBI’s cybercrimes unit which launched a routine cybercrime investigation, but once the emails to Kelley were traced back to Broadwell and information about the extramarital relationship between Broadwell and Petraeus discovered, a “minor cyber harassment investigation [was] turned it into a full blown national security investigation,” according to the Wall Street Journal.
Humphries, like most in the FBI, does not like the CIA. Last year he sat down for an interview with the Center for Public Integrity during which he criticized the CIA for its “enhanced interrogation techniques” used on terror suspects in the wake of 9/11, calling them “immoral and ineffective.” One can imagine the light bulb of “national security” that went on in his head as soon as he learned about the extramarital affair between Petraeus and Broadwell: “classified” material divulged during pillow talk.
But something strange happened on the way to Humphries’s individual road to glory. The cybercrimes unit discovered that muscular “shirtless” photo/email from the terrorism expert to his friend and confidant, Jill Kelley. It didn’t take a rocket scientist—and the FBI is not known for having too many of those—to know that Humphries was too personally involved with Kelley to be a part of the “national security” investigation involving Petraeus. In fact, cybercrimes unit “supervisors” became so concerned that Humphries had become so “obsessed” with pursing the Petraeus investigation, they were forced to order him to stay away from the investigation—an investigation that ultimately established by late October that there had been no breach of national security by the CIA director or anyone else.
Humphries was not pleased with being dumped from the “national security” investigation that he believed he had singlehandedly triggered based on the “tip” he received from Kelley with whom he had recently shared that now infamous Weiner-like photo. He apparently stewed in frustration and resentment, coming to the paranoid conclusion that his own agency (apparently those “supervisors” who kicked him off the investigation) were “covering up” a threat to national security. Within a matter of weeks, and during the height of the presidential campaign, Humphries took his concerns to Republican congressman Rep. David Reichart (R-Wash.) who put the agent in touch with House Majority leader Eric Cantor (R-Va). Cantor ultimately contacted FBI Director Robert Mueller’s chief of staff in late October about Humphries’s concerns.
Once the entire “scandal” was made public after Petraeus’s resignation, the FBI announced that its Office of Professional Responsibility had launched an “investigation” into Humphries’s “shirtless” photo/email to Kelley and his conduct in the Petraeus investigation.
David Petraeus did not commit either a crime or betray his country. He engaged in an extramarital affair with his biographer. That’s a personal family matter, not a “government problem.” What is particularly disturbing here is that a single, zealous FBI agent –whose judgment was obviously undermined by personal motives—could turn a minor cyber harassment complaint into a full blown national security investigation which ultimately ended or tarnished the careers of some otherwise hard-working, capable professionals.
The Petraeus affair raised the question in the national media, particularly ABC News, about how, and under what circumstances, the FBI can access an individual’s personal email account.
The law governing such access is the Stored Communications Act which authorizes a “government entity” to compel an electronic communication service provider to disclose, pursuant to a warrant, the “contents of a wire or electronic communication,” such as an email, that has been stored up to 180 days. To obtain such a warrant, there must be a showing of probable cause that a crime has been committed. However, if the email has been stored for more than 180 days, authority to access by law enforcement is less demanding: the government must serve only an “administrative subpoena or court order” on the ISP—a process that does not require a showing of probable cause of criminal activity.
Stephen I. Vladeck, American University Washington College of Law, succinctly framed the Petraeus affair to ABC News: “The million dollar question is why, before it became clear that General Petraeus was involved in this investigation, was such a high priority for the FBI in the first place? The answer might be that someone just called in a favor.”
We suspect the driving force behind the “priority” given to the FBI “investigation” by the agency’s cybercrimes unit is linked to the personal, “shirtless” relationship between Kelley and Humphries. The agent was a hot shot in the agency with an impressive list of “creds” on his Bureau resume. He also obviously had a close relationship with a socialite “hotty-totty” who maintained“flirtatious” relationships with a host of top military brass. Those ingredients could easily transform a minor inquiry into a “highly sensitive” national security investigation.
The reality is that there were no national security breaches; just a lot of testosterone circulating around Tampa’s “high society” party scene—and Jill Kelley appears to be a major force behind that sexual arousal. And that didn’t set well with Broadwell who had both a personal and proprietary interest in the top man in the scene, none other than the CIA director and four-star general. It can be assumed that the West Point graduate, and Petraeus biographer, didn’t want any competition (or interference) from a pretentious socialite who loved “dropping names” to benefit her social status and financial interests.
Thus, began the Broadwell stream of emails to Kelley and Gen. Allen which garnered the extraordinary interest of an FBI “top cop” who believed “senior U.S. officials” were being threatened.
Even with several recent high-profile scandals involving security officials in sex scandals, it’s still hard to comprehend that this country’s “national security” rest with military intelligence and law enforcement officials who routinely share personally compromising emails and confidential pillow talk with flirtatious members of the opposite sex. This sorry saga sounds more like a high-school drama than the unfortunate history of some of our top intelligence personnel. Fortunately, the national security of our country is primarily protected by low level individuals dedicated to this country’s safety who put our security above their petty, base desires. We should all be thankful that the “terrorists” are dumber than those high level officials charged with protecting us all.
While citizens generally possess a “reasonable expectation of privacy” in their homes, including computers, that expectation is greatly reduced once communications are transmitted over the Internet, especially emails that leave the country’s borders or that have sat on the recipient’s mail server for a period of time. You would think that people like Petraeus, Gen. Allen, and FBI agent Humphries would know this before they hit that “send” key. The send key is a welcome sign to the rest of the world to delve into our private lives, which should give any technologically savvy person pause for concern.
The growing tension between the lightening fast pace of change in technology and individual privacy rights should cause concern for us all. It certainly did for Associate Supreme Court Sonia Sotomayor earlier this year when she concurred in a decision by the High Court to toss a drug conviction because law enforcement officials improperly used a GSP device to track a drug suspect’s movements:
“More fundamentally, it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties … This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks. People disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers; and the books, groceries, and medications they purchase to online retailers. Perhaps, as Justice Alito notes, some people may find the ‘tradeoff’ of privacy for convenience ‘worthwhile,’ or come to accept this ‘diminution of privacy’ as ‘inevitable,’ … and perhaps not. I for one doubt that people would accept without complaint the warrantless disclosure to the Government of a list of every Web site they had visited in the last week, or month, or year. But whatever the social expectations, they can attain constitutionally protected status only if our Fourth Amendment jurisprudence ceases to treat secrecy as a prerequisite for privacy. I would not assume that all information voluntarily disclosed to some member of the public, for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection …”
The Petraeus affair disclosed the fundamental constitutional flaw in email exchanges: The Stored Communications Act does not prohibit 1) obtaining “opened” emails, 2) failing to provide ‘notice of search warrant’ prior to use, or 3) failing to provide an inventory sheet to the issuing magistrate judge.
In the Petraeus case, the FBI’s cybercrimes unit hard-charged into the private affairs of personal lives without any “probable cause” of criminal wrongdoing—and even after the Petraeus/Broadwell liaison was discovered and no evidence of a national security breach revealed, Humphries took his “national security” paranoia out of a law enforcement setting and put it into the political arena, we suspect, to embarrass the Obama administration.
Whatever else is involved in this tragic soap opera, we feel the government should mind its own business and get out of the personal lives of its law-abiding citizens.
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
John Floyd is Board Certified in Criminal Law by the Texas Board of Legal Specialization